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The EPA filed a motion Monday asking the US Fifth Circuit Court of Appeals to hold in abeyance litigation over two aspects of the EPA's final rule, "Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category," pending the EPA's rulemaking regarding two of the six waste streams from power plant (Case No. 15-60821).

In particular, EPA Administrator E. Scott Pruitt on Friday sent a letter to representatives of the Utility Water Act Group and the US Small Business Administration, which petitioned for revision of the power plant wastewater rule.

In the letter, Pruitt said he has "decided that it is appropriate and in the public interest to conduct a rulemaking to potentially revise the new, more stringent Best Available Technology Economically Achievable effluent limitations and Pretreatment Standards for Existing Sources in the 2015 rule that apply to bottom ash transport water and flue gas desulfurization wastewater."

This letter was attached to Monday's filing by the EPA at the Fifth Circuit.

Coal and certain power industry advocates have blamed more stringent environmental rules for accelerated retirements of coal-fired power plants, including some that have been considered premature.

From 2012 through mid-2017, more than 53 GW of coal-fired capacity has retired, according to the S&P Global North American Power Plant Databank, and another 22.2 GW is expected to retire by the end of 2022.

"This is basically a case of 'too little, too late,'" Eric Smith, associate director of the Tulane Energy Institute in New Orleans, said in an email Tuesday. "While it may ease some of the pressure on coal resulting from earlier regulatory overreach, it will not be enough to overcome the innate economic disparity between coal-fired power generation and that associated with [combined-cycle gas turbine] units."

Casey Roberts, general counsel of the Sierra Club, an intervenor in the case, said Tuesday that "it's hard to say" how the court would likely rule on the EPA's motion to hold the overall case in abeyance while the EPA revised its rule regarding two of the six relevant waste streams.

"In our view ... the EPA's proposed division of the case is so unworkable" that litigation over the remaining issues in the rule could not proceed, Roberts said, adding that her group intends to file a brief by Friday opposing the EPA's motion.

Regarding the new wastewater rules' impact on coal plants, Roberts said the cost of compliance "is so small in comparison to other expenses" that the rule, as it stands, "was not going to have an impact on retirements," but the rule, if it stands "will have huge benefits for water quality, given that coal plants are the No. 1 producer of toxic water pollutants in the country."

"That's why it's so egregious that the rules haven't been updated since 1982," Roberts said.

--Mark Watson, Markham.watson@spglobal.com

--Edited by Jason Lindquist, jason.lindquist@spglobal.com

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